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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13441
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-02449-SCJ
BERNARD WILLIAMS,
Petitioner - Appellant,
versus
WARDEN,
Respondent - Appellee,
MARTY ALLEN,
Respondent.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 13, 2020)
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Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Bernard Williams, a Georgia prisoner proceeding with appointed counsel,
appeals the district court’s denial of his amended 28 U.S.C. § 2254 petition for writ
of habeas corpus. Williams seeks to vacate his 2009 Georgia conviction for
burglary. No reversible error has been shown; we affirm.
Before his October 2009 criminal trial, Williams moved to suppress
evidence and testimony about a pre-trial show-up identification of Williams by the
burglary victim (B.T.). Williams also sought to exclude B.T.’s in-court
identification of Williams. The state trial court denied the motion.
At trial, B.T. testified that during daylight hours on 16 August 2009, she
discovered a man inside her home. B.T. described the intruder as a black male in
his 50s, wearing glasses, a tan shirt, and a black fishing cap, who was also carrying
a black attaché case and a small black bag. B.T. confronted the man about what he
was doing in her home. Among other excuses, the man claimed he was looking for
work as a handyman and gave B.T. a handwritten flyer. The face-to-face
encounter between B.T. and the man lasted for three to four minutes. After the
man left, B.T. realized that some of her jewelry was missing; she called the police.
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Within a few minutes of B.T.’s 911 call, officers stopped Williams, who was
observed walking about half a mile from B.T.’s home. The officers then brought
B.T. to a parking lot and asked B.T. whether the man in handcuffs (Williams) was
the burglar. B.T. remained inside the officer’s police cruiser. After viewing both
Williams and Williams’s driver’s license photo, B.T. identified Williams as the
man who had been inside her home. At that time, Williams had on a white shirt
and was not wearing a black hat or glasses. About fifteen minutes elapsed from
the time B.T. first saw the man inside her home to when she identified Williams.
At trial, B.T. identified Williams as the man she saw and spoke with in her
house. B.T. also identified Williams as the man she had identified to police shortly
after the burglary.
The state presented evidence that, at the time of his stop, Williams was
carrying a black attaché case. Inside the case, officers found a black bag
containing jewelry and watches, including items that B.T. identified as having been
stolen from her home during the burglary. The case also contained handwritten
fliers for handyman services like the one the burglar provided to B.T. Between
B.T.’s house and the spot where Williams was stopped, officers found a black hat
later identified by B.T. as the hat worn by the burglar.
After a two-day trial, the jury found Williams guilty of burglary. The trial
judge sentenced Williams as a recidivist to twenty years’ imprisonment.
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On direct appeal, the Court of Appeals of Georgia affirmed Williams’s
conviction and sentence. The state appellate court concluded that the evidence
presented at trial was sufficient for the jury to find Williams guilty beyond a
reasonable doubt.
The state appellate court also rejected Williams’s challenge to the trial
court’s denial of his pre-trial motion in limine. The state court determined that --
even if “the one-on-one show-up procedure was impermissibly suggestive” -- the
record supported the trial court’s determination that “under the totality of the
circumstances, there was no substantial likelihood of misidentification.” The state
appellate court noted that “[e]vidence presented at the hearing on the motion in
limine showed that the victim saw and focused on the man she saw inside her
house; that she spoke to and had ample opportunity to observe the man; and that
she identified him at the police show-up about 20 minutes after the burglary.”
After the state court denied Williams habeas relief, Williams timely filed pro
se the section 2254 federal habeas petition at issue in this appeal. The petition then
was amended with the assistance of appointed counsel. In pertinent part, Williams
raised this ground for relief (Ground Five): “The trial court [improperly] admitted
evidence and testimony of an unreliable eyewitness identification arising from and
tainted by a single suspect show-up.” Williams argued that the show-up
identification made shortly after the burglary was unduly suggestive and was
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unreliable given the totality of the circumstances. He contended the trial court
should have granted his motion to suppress both the show-up and the in-court
identifications. Williams also contended that his claim was entitled to de novo
review because the Court of Appeals of Georgia failed to apply the proper standard
for reviewing claims under Neil v. Biggers, 40 U.S. 188 (1972).
The district court denied Ground Five on the merits. The district court
determined that B.T.’s identification was reliable in the light of these factual
findings made by the state appellate court:
the victim saw, focused on, and spoke to the burglar, and she
identified Petitioner at the show-up as the burglar shortly after the
crime. Although factors such as the victim’s age, race, and stress
level could have affected her ability to identify the burglar, the totality
of the circumstances also includes the facts that Petitioner was
[caught] walking a short distance from the victim’s house with an
attaché case containing the victim’s jewelry and watches and the same
handyman flier that the burglar gave to the victim.
The district court dismissed Williams’s section 2254 petition but granted
Williams a certificate of appealability on Ground Five: whether the trial court erred
in admitting unreliable eyewitness testimony.
We review de novo a district court’s denial of habeas relief. Crowe v. Hall,
490 F.3d 840, 844 (11th Cir. 2007). When the merits of a habeas claim have been
already adjudicated in state court, our review is highly deferential to the state court.
Id. To obtain habeas relief under section 2254, a petitioner must demonstrate that
the state court’s decision “was contrary to, or involved an unreasonable application
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of, clearly established Federal law, as determined by the Supreme Court . . . or . . .
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Crowe, 490
F.3d at 844. Moreover, the state court’s findings of fact “shall be presumed to be
correct” and the petitioner bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” See 28 U.S.C. § 2254(e)(1).
The admission of an eyewitness identification may constitute a due process
violation, if the identification procedures used were “unnecessarily suggestive and
conducive to irreparable mistaken identification.” Biggers, 409 U.S. at 196. That
the identification procedure used was suggestive, however, does not -- by itself --
violate due process. See id. at 199.
The pertinent question is “whether under the ‘totality of the circumstances’
the identification was reliable even though the confrontation procedure was
suggestive.” Id. The Supreme Court has identified several factors to consider in
evaluating “the likelihood of misidentification,” including these factors: (1) “the
opportunity of the witness to view the criminal at the time of the crime,” (2) “the
witness’ degree of attention,” (3) “the accuracy of the witness’ prior description of
the criminal,” (4) “the level of certainty demonstrated by the witness at the
confrontation,” and (5) “the length of time between the crime and the
confrontation.” Id. at 199-200.
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Williams has not rebutted by clear and convincing evidence the state
appellate court’s factual findings on these pertinent factors: those findings are thus
entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); Sumner v.
Mata, 455 U.S. 591, 597 & n.10 (1982) (each of the Neil v. Biggers factors
“requires a finding of historical fact” to which the statutory presumption applies).
“The ultimate conclusion as to whether the facts as found state a constitutional
violation is a mixed question of law and fact” subject to de novo review. See
Sumner, 455 U.S. at 597 n.10; Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir.
1988).
Even if we assume that the show-up identification procedure used here was
suggestive, it was nonetheless reliable under the factors identified in Neil v.
Biggers. B.T. had ample opportunity to view the burglar: B.T. discovered the
burglar in her home during daylight hours and spoke to him face-to-face for three
to four minutes. B.T. was attentive during the encounter, testifying that she could
see clearly the burglar’s unobstructed face during the confrontation. B.T. then
identified Williams as the burglar fifteen minutes after the burglary.
Williams argues that aspects of B.T.’s initial description of the burglar (that
he wore a tan shirt , a black hat, and glasses) did not match Williams’s actual
appearance when he was stopped (wearing a white shirt and no hat or glasses).
Williams also contends that -- before viewing Williams’s driver’s license photo --
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B.T. showed some initial uncertainty about whether Williams was the man inside
her house. These facts, however, are insufficient to outweigh the remaining Neil v.
Biggers factors, particularly where evidence exists that Williams took steps to alter
his own appearance after leaving B.T.’s house. Moreover, the evidence shows that
other details of B.T.’s description -- including the burglar’s race, age, and physical
build -- were consistent with Williams’s appearance.
Based on the totality of the circumstances and consideration of the Neil v.
Biggers factors, it was objectively reasonable for the state appellate court to decide
that the show-up identification procedure -- and, thus, the later in-court
identification -- was reliable and lawful to use.
To appeal, Williams finds fault with the language of the state appellate
opinion. He contends that the Court of Appeals of Georgia reviewed his claim
under an incorrect standard. Williams focuses on one sentence in the state
appellate court’s opinion: “There was evidence supporting the trial court’s ruling,
so we find no clear error in the court’s conclusion that, under the totality of the
circumstances, there was no substantial likelihood of misidentification.” We are
unpersuaded by an ambiguous, isolated sentence in the opinion. We do not grade
state court opinions. The state appellate court’s ultimate decision is consistent with
the state appellate court’s having considered the pertinent factors under Neil v.
Biggers, and the decision shows the appeals court correctly concluded that the trial
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court committed “no error” in denying Williams’s motion in limine. This
conclusion is one which we independently reach, as well.
We affirm the denial of Williams’s 28 U.S.C. § 2254 petition.
AFFIRMED.
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